Hoping for a Heart

Chief Justice John Roberts’ decision to preserve the Affordable Care Act’s individual mandate because it resembles a tax does more than clarify the constitutionality of health reform. It sheds light on his decision-making paradigm and offers more interesting questions concerning how he will vote on future cases. Previously, Roberts has characterized the role of a judge as one of fair and unbiased mediation, but he has nevertheless consistently voted in step with the right wing of the court. His opinion on the Affordable Care Act reveals a desire on his part to preserve the legitimacy of the Supreme Court. However, it leaves open the question of whether he may merely be attempting to set the legal groundwork for the dismemberment of future regulatory and social welfare programs.

Roberts’ vote to preserve the individual mandate reveals his keenness to dispel allegations that the Supreme Court practices partisan politics—an extension of the ‘humble’ persona he has cultivated during his tenure. When speaking before the Senate Judiciary Committee during the confirmation process, Roberts characterized his role as being comparable to an umpire: “The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” However, he also noted that “Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent.” When he voted with the majority to limit the powers of the McCain-Feingold Campaign Reform Act, Roberts was careful to be relatively narrow in his opinion, rather than making generalizing claims of the sort made by Justice Scalia about the First Amendment’s protections of “speech, not speakers.”

New Yorker writer Jeffrey Toobin noted that Roberts’ record of writing opinions like these, which avoid bombastic language and speak largely in terms of precedent and narrowness of judicial power, is not evidence “of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society.” However, Toobin’s illustration of Roberts’ ‘humility’ can be expanded. Instead of speaking in terms of power relationships, which are obviously political, Roberts chooses to speak in terms of deference. In this way, he avoids the appearance of partisanship on the bench of the court. But, when Roberts wrote his opinions concerning corporate influence in elections, gun regulation, and affirmative action, he chose not to include empathy as a judicial tool of equivalent importance to humility—hence his appearance as a “doctrinaire conservative.”

However, Roberts’ opinion on the Affordable Care Act cannot be said to be as obviously “doctrinaire” as those he has written for prior cases. It doesn’t easily pair up, on the surface, with the opinions of his fellow conservative justices and doesn’t merely differ on details of interpretation, as his past ones have. Roberts once again wrote in terms of humility and deference, acknowledging that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Although the mandate appears to be written as “a command under the Commerce Clause,” Roberts notes, it can still be read as “establishing a condition—not owning health insurance—that triggers a tax” and that since “the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” The question remains as to why Roberts is choosing to vote this way. Is it merely to save the endangered image of the Supreme Court? Is it still subtly “doctrinaire,” attempting to preserve “power relationships” by decreasing Congress’ power to pass regulation under the Commerce Clause?

In a 2005 article, law professor Jeffrey Rosen noted how decreasing Congress’ authority to regulate under the Commerce Clause has been part of a conservative commitment to the “Constitution in Exile,” an effort to decrease regulation to the level that existed prior to the New Deal. Rosen cites John Roberts’ behavior as a federal judge, when he questioned the regulatory power of the Endangered Species Act, as possibly evidencing his belief in the “Constitution in Exile.” Reporter Lyle Denniston notes that Roberts’ language may be suggesting to Congress that, “if it can muster the votes to pass new laws to improve the social welfare of America, it might be better advised to create new cultural obligations that can be enforced under the tax code.” Until a future case concerning regulatory power gained under the Commerce Clause comes before the court, it may be too early to tell if decreasing such power is truly why Justice Roberts ruled the way he did,

When Barack Obama, as a Senator from Illinois, voted against Roberts’ confirmation as Chief Justice, he stated that he was confident Justice Roberts would decide ‘correctly’ on cases 95% of the time. In the other 5% of cases, he observed, “Legal process alone will not lead you to a rule of decision… the critical ingredient is supplied by what is in the judge’s heart.” I hope that Chief Justice Roberts’ recent decision is evidence of his ongoing transformation from a cold and detached justice into an empathetic one, with a heart of gold. However, I’m not holding my breath.